OVH and personal data protection
Information regarding Brexit
Despite the end of the transition period during which the United Kingdom continued to apply European Union law, that occurred on December 31st, transfers of personal data to the United Kingdom will be able to continue, at least provisionally, without the need to apply Chapter V of the General Data Protection Regulations ("GDPR") relating to data transfers to countries outside the European Union.
Indeed, the European Union and the United Kingdom have agreed, as part of the Trade and Cooperation Agreement of December 24, that as of January 1, the effective date of the said agreement, the United Kingdom will not be considered as a third country to the Union for transfers of personal data, for a new transitioning period of four (4) months that may be, if necessary, extended for two (2) additional months, i.e. until July 1st (the “specified period”).
This is applicable provided that the said agreement is effectively ratified by both parties and that no substantial changes are made to the data protection regime of the United Kingdom on December 31, 2020 without the approval of the European Union. This should remain the case insofar as both the United Kingdom and the European Union have an interest in facilitating data flows.
In this case, the OVHcloud services located in the United Kingdom will be able to continue to process personal data under unchanged conditions until the end of the said specified period.
Please note, however, that if you do not have an establishment in the European Union, but are processing, as a processor or data controller, from the United Kingdom, data of persons who are in the territory of the Union as provided for in Article 3 of the GDPR, you are required since January 1 to appoint a representative in the Union, in accordance with Article 27 of the GDPR.
This new transitional arrangement should allow time for the European Commission to decide, pursuant to Article 45 of the GDPR, whether or not the United Kingdom has an adequate level of protection of personal data.
If so, the Commission will issue an adequacy decision and data transfers to the United Kingdom will be able to continue on such a basis without need to further formalities at the end of the specified period.
Conversely, in the absence of an adequacy decision, data transfers from the Union to the United Kingdom may no longer take place at the end of the specified period, unless appropriate safeguards are put in place as provided for in Article 46 of the GDPR, and notably if rights are recognized and effective remedies are available in the United Kingdom for European data subjects.
What would be the impacts for OVHcloud customers if the European Commission does not provide adequacy decision by the end of the specified period? In particular in relation to their use of OVHcloud services?
Several situations must be distinguished:
You are a customer of an OVHcloud European entity and only use OVHcloud services hosted in European Data Centers (excluding services hosted in the OVHcloud data center located in the United Kingdom)
Indeed, in this case, your data remains hosted in the European Union, and OVHcloud refrains from unilaterally changing such location and in particular from transferring your data to its data center in the United Kingdom.
In addition, OVHcloud teams located in the United Kingdom would not be in charge of the administration of the services provided to European customers (except OVHcloud UK customers) hosted in European data centers. As a result, no processing of data associated with the said Services would be carried out remotely from the United Kingdom.
Finally, if OVHcloud was to receive a request from a United Kingdom authority to obtain communication of the data you host in one of its European data centers, OVHcloud would, in accordance with its policy, oppose such a request unless it is made in accordance with Article 49 of the GDPR or an international agreement, such as a mutual legal assistance treaty, in force with the United Kingdom.
Warning: If you are working from the United Kingdom on the data and solutions that you host as part of your OVHcloud European services, or if you use a third-party service provider located in the United Kingdom, you should ensure that the appropriate safeguards are in place on your side according to article 46 of the GDPR.
You are a customer of an OVHcloud European entity and use services hosted in the OVHcloud Data Center located in the United Kingdom.
In this context, in accordance with its contractual commitments, and in particular Article 6 "Location and transfers of personal data" of the Appendix "Processing of Personal Data", OVHcloud would set up a data transfer agreement in accordance with the standard contractual clauses adopted by Decision No. 2010/87/EU of the European Commission of February 5, 2010 (the "Standard Contractual Clauses") or equivalent.
Nevertheless, while the implementation of these standard contractual clauses is, in accordance with Article 46 of the GDPR, a necessary prerequisite for such data transfers in non-adequate third countries, it does not systematically constitute by itself a sufficient guarantee; supplementary measures may be necessary.
In absence of adequacy decision from the European Commission concerning the United Kingdom by the end of the specified period, you should therefore ensure that, in addition to the above-mentioned standard contractual clauses, appropriate supplementary measures (such as encryption of your data) are put in place if necessary in the light of your activity and the new legal order of the United Kingdom.
In this respect, OVHcloud invite you to follow the 01/2020 recommandations adopted on November 10 by the European Data Protection Board (“EDPB”).
Likewise, if you operate from the United Kingdom on the data and solutions that you host as part of your OVHcloud services, or if you use a third party service provider located in the United Kingdom, you should ensure, in the absence of adequacy decision, that the appropriate safeguards are put in place according to article 46 of the GDPR.
OVHcloud also remain at your disposal should you have any questions regarding the security measures implemented by OVHcloud.
You are a customer of OVH Limited, a UK-based entity of OVHcloud.
In addition, as a company governed by English law, OVH Limited falls under the jurisdiction of the United Kingdom, it may have to respond to requests from the authorities of the United Kingdom, notably judicial or governmental authorities, to communicate data hosted by its customers in its services.
Therefore, if the European Commission does not issue an adequacy decision concerning the United Kingdom by the end of the specified period, and you wish to use the OVHcloud services to process personal data submitted to the GDPR, you should, in accordance with Article 46 of the GDPR, ensure that appropriate safeguards are in place.
As such, OVH Limited will support you and implement a data transfer agreement that complies with the standard contractual clauses adopted by the European Commission Decision No. 2010/87/EU of February 5, 2010 (the "Standard Contractual Clauses") or equivalents.
Nevertheless, if in this case, the Standard Contractual Clauses are a necessary prerequisite pursuant to Article 46 of the GDPR, they do not always constitute by themselves a sufficient guarantee. Therefore, it will be up to you to put in place any supplementary measures (such as encryption of your data) that may be necessary in view of your processing activities and the new legal framework of the United Kingdom.
In this respect, OVHcloud invite you to follow the 01/2020 recommandations adopted on November 10 by the European Data Protection Board (“EDPB”).
OVHcloud also remain at your disposal for any questions concerning the security measures implemented by OVHcloud.
Concerning the personal data collected and processed by OVHcloud as “data controller”.
OVH Limited, an OVHcloud entity located in the United Kingdom, may participate in the above data processing activities.
If the European Commission does not provide adequacy decision concerning the United Kingdom by the end of the specified period, OVHcloud will put in place appropriate safeguards in accordance with Article 46 of the GDPR and the commitments stipulated in Part 2 of the Annex "Processing of Personal Data".
For more details regarding the data collected and the processing carried out on such data, you may consult Part 2 of the above-mentioned Annex "Processing of Personal Data"; being specified that the data you host and use in the context of your OVHcloud services are not concerned.
The « Data Processing Agreement » of OVH is evolving. The material changes from the previous version, as of May 25, 2018, are the following:
- More details and transparency concerning the data processing carried out by OVH as a data controller (see Section 2);
- Improvement of the process applicable in case of subcontractors change or appointment subcontractors (see article 7 “Subcontracting”);
- Simplification of the process that is applicable when you choose to host personal data in our data centers located outside the European Union, by a systematic implementation of safeguards as provided by the Regulation (EU) 2016/679 (GDPR);
- More information on how to contact the OVH Data Protection team for any questions relating to your personal data.
OVH, founded in 1999, is now one of the leading names in the cloud industry, with a presence in 19 countries around the world. We have over 1 million customers and we take customer data and security extremely seriously.
Download our official documentation
When you decide to outsource some or all of the hosting for the data that your organisation processes to OVH, you are entrusting us with a share of your information assets. We are aware of the issues that this can represent for your company, particularly when it comes to compliance with the relevant data protection regulations. This is why OVH is providing the most complete information possible on issues concerning the protection of personal data.
Regulations that govern personal data protection
There are currently various documents covering data protection in place at the national, international, and European levels. The most important ones are the following:
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- Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, repealed on 25 May 2018 by Regulation (EU) 2016/679.
- Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
- Charter of Fundamental Rights of the European Union (2012/C 326/02).
- Convention for the protection of individuals with regard to the automatic processing of personal data.
OVH undertakes to abide by its obligations in accordance with the aforementioned regulations, particularly the General Data Protection Regulations (GDPR). It's this commitment to compliance in particular which means that OVH's customers can also meet some of their own regulatory obligations. We strongly advise all our customers to be particularly vigilant on these aspects of compliance. Other, more specific regulations may exist, including for certain specific categories of personal data. In such cases, organisations are solely responsible for correctly identifying the regulations applicable to their business activities, and achieving compliance with them. Choosing the right provider, especially when it comes to the cloud, is essential if you want to meet your own obligations on protecting personal data.
OVH's Data Protection Officer (DPO): oversees data protection strategy and implementation to ensure compliance with GDPR.
OVH has appointed a DPO, whose role and aims are partly determined by European regulations. The DPO acts as a fully independent internal watchdog, ensuring that OVH's data processing operations are compliant with all applicable European regulations.
Grégory Gitsels - Data Protection Officer
Grégory Gitsels is totally committed to his objectives and has the resources at his disposal to operate completely independently, without any conflicts of interest. He regularly runs awareness and training sessions for the Group's employees and is there to answer their questions on privacy and data protection. He is in charge of implementing a "privacy by design" and "privacy by default" approach, especially for designing new solutions for customers, he liaises with supervisory authorities and more... He is also the first point of contact for any customers who need guarantees for the measures they have implemented in order to conform with applicable regulations, including the GDPR.
